Question on property releases

I shoot commercially and often just as a hired camera so releases have always been handled for me. I am looking to expand into art print sales and have a question about this particular print I'd love to sell;

This image was taken from the parking lot (shared access with some industrial buildings) of a railroad museum that's listed as a non-profit entity. The tracks shown mark the division between parking access and public street. It contains a steam train that was on loan for a short period to do public runs up and down a stretch of track owned by the museum. I believe it is also owned by a not for profit entity. I also have other images of this train I'd love to sell.

The Model T is privately owned and belongs to a member of a local antique car club that happened to come by for a visit. They were not part of the day's activities. I just happened to be in the right place at the right time.

This is a very popular image among my friends and acquaintances but have some questions about property releases. I feel I might need a property release for three elements in this image; the train, the station/museum and the car.

Or consult an attorney. The answers you get here will be based largely on people's experiences. They may not be helpful if you encounter a difficult property owner. Speaking only for myself and without any implied lawful obligation, I think I would give a print to each of the property owners if my intention was to make money off it.

My gut is to get property releases and offer each a free print. But that's my personality. I'm just wondering what the real (legally binding and resolvable in court) answer is.I know for commercial use I would definitely need one. Just wondering if the rules were a bit lenient with art prints.

Thanks for your input. I'm a member of ASMP. I should probably post the question to them, shouldn't I.

-Duck- wrote in post #18067749I shoot commercially and often just as a hired camera so releases have always been handled for me. I am looking to expand into art print sales and have a question about this particular print I'd love to sell;.

A: The answer to this question can be reached by asking a series of questions about the subject and use of the photograph. A property release is advisable and may be needed from each property owner whose property appears in a photograph that is used for advertising or trade (business) purposes when the property owner is clearly identifiable by the property. (Note that the owner can be a corporation as well as an individual.)

Look at the photograph and the property in it, and ask these questions:

1.Could the owner of the property in the photograph (may be a corporation) be identified by anyone just by looking at the photograph of the property?

If the answer to question #1 is No, then you do not need a release.

2.Is the photograph to be used for an advertisement? (In law, “advertisement” is very broadly defined.)

3.Is the photograph going to be used for commercial purposes, like a brochure, calendar, poster, web site or other use that is intended to enhance a business interest?

If the answers to question #2 and question #3 are both No, then you do not need a release.

Otherwise, you do need a release.

When doing this analysis, remember that a property can include, or even be, a trademark. Depending on the details, use of another’s trademark without permission may be a violation or dilution of the mark. For example, if you photograph a building with the logo of ASMP on it, you have to have permission to use it for advertising or trade purposes. Why? because the logo is the property of ASMP. What about the building the logo is displayed on? This is more complicated question. To learn more about trade and related marks, go here.

Wilt wrote in post #18067860In general, 'commercial usage' to promote a business, such as in advertising, brochures, etc. have need for property release.

My understanding is that the SALE of a print to be used as decorative (not promotional) purposes does not fall within 'commercial usage'.

I guess where I get hung up on is the term commercial useage as I will be selling them for my own profit, therefore, for me, it would be a form of commercial gain. I'm probably putting too much into the term...

-Duck- wrote in post #18068006I guess where I get hung up on is the term commercial useage as I will be selling them for my own profit, therefore, for me, it would be a form of commercial gain. I'm probably putting too much into the term...

Thanks for the input.

Be aware that the definition of "commercial" will vary depending on context and legal sources, but economic gain to the photographer is generally excluded.

EDIT: In fact, there can be "commercial" use without having any easily identifiable economic gain to any party.

-Duck- wrote in post #18068013Thanks MattI guess I'm just a bit paranoid.

No, not paranoid. There's a lot of ambiguity to sift through. I would take note of the 3 issues in the asmp link above. Even if you're right, it doesn't mean that a party won't try to argue otherwise. I only have experience with model releases. I haven't yet needed to deal with a property release.

PineBomb wrote in post #18068027No, not paranoid. There's a lot of ambiguity to sift through. I would take note of the 3 issues in the asmp link above. Even if you're right, it doesn't mean that a party won't try to argue otherwise. I only have experience with model releases. I haven't yet needed to deal with a property release.

Same here, I've only dealt with model releases, but as an intermediary.

As I mentioned earlier my gut tells me to seek out the owners for property releases. It'll take some digging but it may be doable. And what's a print as cost for getting those releases in relation to a possible tort.

However, in the meantime, I think I can post this for sale without worrying too much.

"Q: If I photograph a large group of people and plan to sell the picture, would I need model releases from every person?

"A: If you just want to sell fine art prints, or even posters, you should be OK without releases. If you license the picture for use in a book, you should be OK without any releases as long as you don’t allow the publisher to put the photo on the cover of the book or use it in promotional materials.

"But if you put it on coffee mugs or allow its use in any way that would be considered purposes of trade or advertising, you are probably going to be liable for the invasion someone’s right of privacy unless you have gotten releases from every person who is recognizable in the photo. A bank once made a photo of about 300 of its own employees standing in one of its lobbies. When the picture ran in an ad campaign, some of the employees sued the bank, and won."

"Q: How do I know when I need a property release?"A: The answer to this question can be reached by asking a series of questions about the subject and use of the photograph. A property release is advisable and may be needed from each property owner whose property appears in a photograph that is used for advertising or trade (business) purposes when the property owner is clearly identifiable by the property. (Note that the owner can be a corporation as well as an individual.)

"Look at the photograph and the property in it, and ask these questions:

"Could the owner of the property in the photograph be identified by anyone just by looking at the photograph of the property?

"If the answer to question #1 is No, then you do not need a release.

"Is the photograph to be used for an advertisement? (In law, “advertisement” is very broadly defined.)

"Is the photograph going to be used for commercial purposes, like a brochure, calendar, poster, web site or other use that is intended to enhance a business interest?

"If the answers to question #2 and question #3 are both No, then you do not need a release.

"Otherwise, you do need a release.

"When doing this analysis, remember that a property can include, or even be, a trademark. Depending on the details, use of another’s trademark without permission may be a violation or dilution of the mark. For example, if you photograph a building with the logo of ASMP on it, you have to have permission to use it for advertising or trade purposes. Why? because the logo is the property of ASMP. What about the building the logo is displayed on? This is more complicated question. To learn more about trade and related marks, go here."

Privacy and property laws vary by state. It is my understanding that fine art prints require no property or model releases in NYC. However, we all know that legal interpretations vary and it wont stop a lawsuit.

The reasonable business strategy would be to offer a free print to each group involved in the print in exchange for a property release, and possibly build more relationships for similar future projects.

Scott Spellman wrote in post #18068542...The reasonable business strategy would be to offer a free print to each group involved in the print in exchange for a property release, and possibly build more relationships for similar future projects.

Legalities aside, I lean more towards this line of thinking. Specially with the museum and the Model T.

If I donate a large (LARGE) print to the museum it may generate some exposure for the print, increasing sales. As for the Model T. I understand the owner is involved with one or two local car clubs. That may generate exposure for future work.

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